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NEPA Procedures &

Terminology

■sk-jL.: ■ ‘ . ..

Chapter 2 Module 2

HO # 4

Module Objective

■ LEARNING OBJECTIVE: The Student
will acquire a basic understanding of
the terminology associated with the
NEPA process.

2

CEQ Advisory Manuals

■ Considering Cumulative Effects Under the
NEPA (1997)

■ Environmental Justice: Guidance Under
the NEPA (1997)

■ Designation of Non-Federal Agencies to
Be Cooperating Agencies in Implementing
the Procedural Requirements of NEPA
(1999)

■^Citizens Guide to NEPA Dec 2007

Additional Guidance

Emergencies and the NEPA 05122010

Establishing, Applying & Revising
Categorical Exclusion under the

NEPA 11232010

NEPA Draft Guidance, "Consideration of the
Effects of Climate Change and Greenhouse
Gas Emissions." 02182010

Amended EIS Filing System Guidelines FR
Vol 76 No. 10 Jan 14, 2011

CEQ Mitigation and Monitoring Guidance
14Jan2011

Guidelines for Implementing
NEPA

■ Council on Environmental Quality 40 CFR
Part 1500-1508 Nov 29, 1978

■ USAGE ER 200-2-2 effective March 4, 1988

■ Implements CEQ regulation.

■ Codified as 33 CFR Part 230 Feb 3, 1988

■ Army Regulation 200-2

■ Army DOD activities not Civil Works.

■ Codified as 32 CFR Part 651 March 29, 2002

■ 40 Most Asked Questions (1981)

5

Record of Environmental Consideration (REC)

To: (Environmental Officer)

From: (Proponent)

Project title:

Breif description:

Anticipated date and/or duration of proposed action: (Month^ear)

Reason for using record of environmental consideration (choose one):
a. Adequantely covered In an (EA. EIS) entitled , dated

The EA/EIS may be reviewed at , (location)

OR.

b. Is categorically excluded under the provisions of CX , AR 200-2. appendix A,

(and no extraordinary circumstances exist as defined In paragraph 4-3). because

Date installation Environmental Coordinator

Variation from this format is acceptable provided basic information and approvals are in-
cluded in any modified document.

Categorical Exclusions

■ Must be published in agencies regulations.

■ USAGE has listed 18 actions (33 CFR
230.9 and ER 200-2-2).

■ Routine operation and maintenance.

■ Minor access roads and boat ramps.

■ Transfer of lands to other federal agencies.

■ Compliance w/other federal laws still
applies

■ CEQ Memo Nov 23, 2010 Establishing,
Applying & Revising CATXs under NEPA

8

Categorical Exclusions

■ Are there CX's for a new Planning
Project?

9 Handout # 4

Effects/Impacts

■ Terms "Effects" and "Impacts" are often
used interchangeably in NEPA.

■ Effects on the hunnan environnnent
include effects on the NATURAL &
PHYSICAL environment, and the
aesthetic, historic, cultural, economic,
social or health, whether direct, indirect,
or cumulative when related to the physical

effect.

10

Effects/Impacts

■ You have to physically affect the
environment!

■ Significant social & economic effects
by themselves do not trigger an EIS.

11

Metropolitan Edison Co. v. Pane,
U.S. Supreme Court 460 766 (1983)

You Have to Physically Affect the

Environment

The SC held that restarting the Three Mile
Island Nuclear Reactor did not require NEPA
analysis, even though its restart would cause
psychological harm to neighbors, because
restarting the reactor would not affect the
physical environment.

12

Douglas County v. Babbitt, 48 F.3d 1495
(9th cir. 1995) cert. Denied 516 U.S. 1042
(1996)

You Have to Physically Affect the

Environment

The Court held that preserving the
natural environment did not require
NEPA analysis because it did not alter
the physical environment.

13

Three Types of
Effects/Impacts

■ Direct Effects

■ Caused by the action
and occurs at the same
time and place

■ Indirect Effects

■ Caused by the action but
are later in time or removed
in distance, but are still
reasonably foreseeable

14

Effects/Impacts Clarification

Indirect vs. Cumulative

• The distinction between indirect and
cumulative impacts is that indirect effects
are caused by the federal action ,
whereas the cumulative impacts can arise
from unrelated activities (including any
associated indirect effects) that effect
resources in common with the federal
action in question.

15

Three Types of Impacts
(cont...)

■ Cumulative effects.

■ Effects that are additive in nature
regarding a common resource.

■ Base your analysis on a defensible
historical condition or "benchmark."

■ CEQ mandated analysis (1508.25 (a)(2).

■ "Consideration of Cumulative Effects in
ERA Review of NEPA Documents ERA
315-R-99-002 May 1999.

16

Cumulative Impacts

Past

Actions

Impac

Propose

d

Cumulative
Impact on
Individual
Resource

I

Future

Actions

Other

Present

Actions

* Reasonably
foreseeable;
includes
indirect actions

Cumulative Impacts

Time-Laps^ Aj^imatlora

Jonah Natural Gas Field, WV

National Environmental
Policy Act

€iT~

What is a Significant

impact?

Not Always an Easy Question! !

19

Significantely (40 CFR §
1508.27)

■ We are (dealing with two questions!!

■ What is the significance of the impact?

■ What is the significance of the resource
being impacted ? See Ch 6 Mod 1

■ The answer to the second Q can
influence the answer for the first ! !

20

Significantly (cont)

■ In NEPA "significance" requires consideration in two
perspectives. (Delaware Deepening 3rd Circuit 2012)

■ Context

■The local or setting of the action
■ Short and iong term effects are relevant

■ Intensity

■Severity of the impact.

■Considerations include health & safety,
controversy, uncertainty, precedence,
cumulative, and resource significance .

21

Significance of Impacts (40
CFR§ 1508.27)

■ May be Acdverse

■ May be Beneficial

■ May be Both Beneficial and Adverse

■ May be Significant Even if on Balance
the Effect is Beneficial

23

ivMLiydLivt; ciivituiwnt^tiLdi

Assessment

■ Reduction of impacts to negligible
status through compensatory
mitigation

■ Mitigation features are integral
component of the project

■ Expressed in the EA and the FONSI

■ NEPA requirements are met and EIS is
not required

24

Lead Agency

■ Corps Civil Works projects = USACE is the
lead agency.

■ Supervises the preparation of the EIS.
Requests cooperating agency participation.

■ Publishes notice of intent to prepare an EIS
in the Federal Register, (see detail in 33
CFR 230)

■ Conducts Scoping Activity

25

Cooperating Agency

■ Federal agencies recognized as having
jurisdiction shall be a cooperating agency .

■ Federal agencies recognized as having special
expertise may be a cooperating agency.

■ 40 CFR 1501.6 provides basis for request .

■ Service is based upon formal written request of the
lead agency.

Cooperating Agencies normally will use own
funds.

■ Lead agency shall fund requested
analyses/activities (if funds permit).

26

Cooperating Agency Benefits

■ Provides staff to enhance the interdisciplinary
capability of the lead agency.

■ Facilitates integrated decision making
between federal agencies

■ 40 CFR Ch V. NEPA Implementation Procedures
FR Vol. 49. No. 247, Friday Dec 21, 1984

■ Appendix II - Federal and State Agencies with
Jurisdiction by Law or Special Expertise on
Environmental Quality Issues

27

Scoping

■ Process to define affected public and
agency concerns and issues.

■ Deters future legal challenges.

■ Determines scope and significant
resources and issues to be analyzed in
the EIS.

■ "PMPforthe EIS."

■ Recommended but not required for an
EA.

28

Scope of Analysis

■ Actions

■ Connected

■ Cumulative

■ Similar

■ Alternatives

■ No action

■ Reasonable
courses of action

■ Actions by others

■ Impacts

■ Direct

■ Indirect

■ Cumulative

29

Three Types of Action

■ Connected

■ Actions that that are closely related and
cannot proceed without the other and
therefore should be discussed in the same
impact statement, (interdepended)

■ Cumulative

■ Actions when viewed with other proposed
actions, not necessarily by the same agency,
having cumulatively significant impacts on
common resources

30

Three Types of Action (cont...)

' ' , < a . • ■ i

■ Similar

■ Actions when viewed with other
reasonably foreseeable or proposed
agency actions have similarities
common timing or geography that
provide a basis for evaluating their
environmental consequences together

31

Three Types of Alternatives

■ No action*

■ Reasonable courses of action ( driven
by purpose and need)

■ Actions by others

32

* P & G future w/o project
condition Which has legal
recognition?

Mitigation

■ Should be described in NEPA Doc and must be
included in FONSI and or ROD

■ NEPA lists 5 hierarchical actions to address
mitigation.

■ Avoid the impact by not taking the action or parts
of the action.

■ Minimizing the impact by limiting the degree of
action.

■ Rectifying the impact by repairing the loss.

33

Mitigation (cont...)

■ Reducing or eliminating the impact over time
by preservation and maintenance operations
during the life of the action.

■ Compensating for the impact by replacing or
providing substitute resource.

■ What happens If mitigation brings the
impacts below significance? (CEQ's 40 FAQs
#39)

Mitigation

■ CECW-PC 31 Aug 2009-Implementation
Guidance for Section 2036 (a) WRDA
2007 Mitigation for Fish & Wildlife &
Wetland Losses

■ Confirms consistency with standards and
policies of the Corps's regulatory program.

■ Provides for a water shed approach

■ Requires Incremental justification

■Requires a plan, success
criteria/performance measures,

MONITORING and ADM.

35

Monitoring & Adaptive
Management

■ CECW-PB Memo of 31 Aug 2009 for Section
2039 WRDA 2007 Monitoring for Ecosystem
Restoration.

■ Drops 1% & 3% cost ceilings of PGN.

■ Costs and components are subject to ATR/IEPR
review for appropriateness and are cost shared
similar to Mitigation Planning

■ Expands BUT does not mandate a
monitoring window of up tolO years

36

Guidance on ADM, Monitoring
and Mitigation

■ Originates from CEQ "a monitoring
and enforcement program shall be
adopted. ..where applicable for
mitigation." 40 C.F.R. § 1505.2(c).
1988

■ Reemphasized by CEQ Guidance Jan
14, 2011

37

Tiering

■ Optional use of broad based
programmatic analysis followed by
subsequent site specific documentation.

■ Eliminates repetitive discussions and
focuses on issues at hand.

■ Ties together interrelated projects in a
common environment.

■ Support cumulative impact analyses.

38

Adoption- Incorporation by
Reference

■ The adoption by reference of all or
portion of another NEPA document in
the document being prepared

■ Reduces duplication of the NEPA
process allows adoption of other federal
agency EIS, saves time and money.

■ The adopting agency is responsible for
the adopted portion.

39

40 CFR
1503.6

Adoption- Incorporation by
Reference

■ Do it to Cut Down on Bulk

■ Cite and Briefly Describe Information

■ Material Must be Reasonably
Available

■ Proprietary Data Not Allowed

(40 CFR § 1502.21

40

Supplements to an EIS

■ Necessitated by substantive changes in a
proposal relevant to environmental concerns

■ Can be precipitated by new information.

■ An old EIS (greater than 5 years) should be
reviewed regarding the need to supplement.

■ Age alone does not require supplementation.

■ An EIS can be supplemented by an EA/FONSI

41

Emergency Actions

a CEO Guidance 40 CFR 1506.11

° ER 200-2-2 "... to prevent or reduce imminent
risk of life, health, property, or severe economic
losses...."

a Examples:

^RL.84-99- repair eligible storm damage
reduction systems impacted by floods

^Section 3 of Rivers and Harbor Act, 1945

o Removal of navigation obstructions

^Section 14 of the Flood Control Act, 1946

^Streambank and shoreline protection projects

42

Emergency Actions (cont...)

EA-Level (No Significant Impacts)

■ NEPA documentation should be accomplished
prior to initiation of emergency work if time
constraints render this practicable. (ER 200-2-
2 )

■ Documentation may also be accomplished after
the completion of emergency work, if
appropriate. (ER 200-2-2)

43

Emergency Actions (cont...)

EIS-Level (Significant Impacts)

■ "When possible, emergency actions
considered major in scope with potentially
significant environmental impacts shall be
referred through the MSC to HQUSACE for
consultation with CEQ regarding NEPA
arrangements." (ER 200-2-2)

■ Alternative Arrangements (Hurricane Katrina,
New Orleans District) 40 CFR 1506.11

44

Take Away Points

■ Scoping is essential to good documents

■ Cooperating agencies aid the process

■ Impacts include direct, indirect & cumulative

■ Impact significance is based on context and
intensity ( IWR definitions of significance are
factors to be considered)

■ Actions may be connected, similar or
cumulative

■ Mitigation may avoid, minimize, rectify, reduce
or compensate

45

Take Away Points

■ Monitoring and Adaptive Management
actions need to be considered in the
documentation, analysis and description
of the proposed federal action

■ Emergency actions can proceed with
alternative documentation procedures

■ Information sources include adoption and
reference or tiering to other documents

46